What does it mean? A landlord and leaseholder guide to key terms in the Building Safety Act

Since the Building Safety Act (“BSA 2022”) was granted Royal Assent on 28 April 2022, a raft of secondary legislation has continued to bring the BSA 2022 into force. We are aware that this significant piece of legislation may seem large, unwieldy and difficult to find a place to start. With this in mind here is a glossary of key terms that landlord and leaseholders need to be aware of in relation to the BSA 2022 and high-rise residential buildings. If you have any specific questions or would like to speak to one of our experts, please do not hesitate to get in touch.

The following terms relate to the operation of the leaseholder protections added to the Landlord and Tenant Act 1985 by BSA 2022. The leaseholder provisions provide that qualifying leaseholders cannot be required to contribute to the cost of removing unsafe cladding and can only be required to contribute a capped sum towards non-cladding costs arising from relevant defects.

Accountable Person (AP) – The person(s) or organisation(s) that own or have a legal obligation to repair any of the common parts of a high-rise residential building. The AP is responsible for assessing and managing the risks posed to people in and about the building from structural failure or the spread of fire including the management of the building safety case and the golden thread of data for the building. If there are multiple APs for a building, the APs must work together and share information about the building and each AP will be responsible for managing the risks in the parts of the building that they own or are required to maintain.

Building Assessment Certificate (BAC) – The certificate required by the BSR as part of the application to register a high-rise residential building. A High-Rise Building does not need a BAC before it can be occupied, but must be registered as a High-Rise Building before it is occupied . The PAP is responsible for keeping the BAC up to date.

Contribution Condition – A landlord cannot pass the costs of remediating Relevant Defects in a Relevant Building onto Qualifying Leaseholders if the landlord or its associated landlord group has a net worth of more than £2M per Relevant Building (as at 14 February 2022).

Developer Test – A landlord cannot pass the costs of remediating Relevant Defects in a Relevant Building if the building owner was – or was associated with – the developer of the building (as at 14 February 2022) (regardless of whether the tenant holds a Qualifying Lease).

Fire Safety Order 2005 – A separate piece of legislation (amended by BSA 2022) which also contains important provisions relevant to the safety.

High-Rise Building – A building which includes two or more residential units and is 18 metres in height or higher, or comprises at least seven storeys. High-rise buildings are referred to as Higher-Risk Buildings under the BSA 2022 and are subject to strict safety requirements imposed by the BSA 2022 to address the potential consequences from the spread of fire and / or structural failure.

Landlord’s Certificate – This certificate will demonstrate whether the landlord (as at 14 February 2022) meets the Contribution Condition and/or the Developer Test and is prepared in response to a Leaseholder Deed of Certificate to confirm if the lease is a Qualifying Lease.

Leaseholder Contribution Caps – The cap that applies where a Qualifying Leaseholder is required to contribute towards the cost of non-cladding remediation (ie the Developer Test and Contribution Condition are not satisfied). Contributions are to be spread over 10 years and the cap is calculated with reference to the location of the property and the value of the property as at 14 February 2022 and as evidenced by the information provided with the Leaseholder’s Deed of Certificate.

Leaseholder’s Deed of Certificate – The document setting out the information that a landlord will need to identify the extent to which a lease is a Qualifying Lease. This will vary from case to case but should include a copy of the Land Registry title to the property and evidence confirming whether or not the property was the only or principal home of the person that was the tenant in occupation at 14 February 2022.

Principal Accountable Person (PAP) – Each higher-risk building must have a clearly identifiable person known as the PAP. The PAP is responsible for registering the building with the BSR and must make sure that the structural and fire safety risks are managed for the whole building including the preparation of the Building Safety Case Report. If there is just one AP they will also be the PAP. If there are multiple APs, whoever owns or has legal obligation to repair the structure and exterior of the building will be the PAP.

Qualifying Lease – A lease is qualifying if it meets all of the following criteria:

• it is a long lease (more than 21 years in length) of a single dwelling within a building of above 11 metres or at least five storeys;
• the leaseholder is responsible for paying a service charge;
• the lease was granted before 14 February 2022; and
• on 14 February 2022:
• • the dwelling was the leaseholder’s only or main home, meaning it was the home where the leaseholder spent most of their time, or
  • the leaseholder did not own more than 3 dwellings in the United Kingdom in total – please note, dwellings outside of England will not be covered by the leaseholder protections.

The Government have amended the BSA 2022 to ensure that the statutory protections for leaseholders continue where qualifying leases are extended, varied or replaced by an entirely new lease. This means that those leaseholders who have, for example, extended their leases or are in the middle of the process, are covered by the protections.

Qualifying Leaseholder – The current tenant of a leasehold property held under a Qualifying Lease.

Relevant Building – A self-contained building that contains at least two dwellings and is at least 11 metres or has at least five storeys (subject to certain exemptions including where the building is leaseholder owned).

Relevant Defect – A defect that arises as a result of anything done (or not done) or used (or not used) in connection with Relevant Works that causes a safety risk (being a risk to the safety of people in or about the building arising from the spread of fire or the collapse of the building).

Relevant Works – Works relating to the construction or conversion for residential use of a building, or to remedy a Relevant Defect in each case where completed between June 1992 and June 2022.

Remediation Order – Remediation orders were introduced under the BSA 2022 to ensure that essential remediation work required to remedy Relevant Defects takes place without delay. Regulatory bodies and leaseholders can apply to the First-tier Tribunal for a remediation order to compel a relevant landlord to remedy Relevant Defects by a specified time.

Remediation Contribution Order – A civil remedy introduced by the BSA 2022. Should a landlord or building owner refuse to meet their cost liabilities under the BSA 2022 and associated regulations, an application for a remediation contribution order can be made with the intention of recovering costs incurred, or to be incurred, in remedying Relevant Defects.

Resident’s Engagement Strategy – A document setting out how residents and those that own a residential unit in a High-Rise Building will be included in building safety decisions. The PAP is required to prepare the resident engagement strategy working with all APs for the building. Required as part of the application for a BAC.

Responsible Person – Premises that fall within the scope of the Fire Safety Order are required to have an identifiable person – usually the owner or person with control of the building (this could be the AP or the PAP) that is responsible for keeping persons (rather than the premises) safe.